DocketNumber： 93-2379
Filed Date： 9/23/1994
Status： Precedential
Modified Date： 9/21/2015
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 93-2379
UNITED STATES OF AMERICA,
Appellee,
v.
GARY GARAFANO,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Aldrich, Senior Circuit Judge,
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and Young,* District Judge.
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John A. MacFadyen for appellant.
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Margaret E. Curran, Assistant United States Attorney, with whom
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Sheldon Whitehouse, United States Attorney, and Craig N. Moore,
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Assistant United States Attorney, was on brief for the United States.
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September 23, 1994
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*Of the District of Massachusetts, sitting by designation.
BOUDIN, Circuit Judge. In December 1992 a grand jury
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indicted Gary Garafano on one count of extortion under color
of official right under the Hobbs Act, 18 U.S.C. 1951. The
gist of the charge was that from spring 1989 to December
1990, Garafano, then an official in the Providence, Rhode
Island, Department of Public Works, had extorted payments
from a road paving firm doing work for the city, Forte
Brothers Construction Corporation ("Forte Brothers").
At a first trial in June 1993 the jury deadlocked. A
second trial was conducted in the fall. At trial, the
government offered testimony of James Forte, vice president
of Forte Brothers, that during 1988 and 1989 the firm was
engaged in road repair work for the city. In or about March
1989, said Forte, he met with Garafano and agreed to the
latter's demand for $8,000, without which Garafano threatened
to cease authorizing work to be performed by Forte Brothers.
Forte also testified that he gave the money to Steven Tocco,
the firm's supervisor for the road repair work, to deliver to
Garafano.
Tocco testified that he delivered the money to Garafano.
Tocco also testified that in response to further demands
from Garafano, Tocco made somewhere between 12 and 20
additional payments to Garafano between April 1989 and
December 1990, and that the total amount of the payments to
Garafano was around $100,000. Much of the money came from
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inflated billings by Forte Brothers on individual road repair
and other projects for the city. According to prosecution
testimony, Garafano authorized various of these projects and
expedited payments.
Garafano himself testified and denied demanding or
receiving any money from Forte Brothers. Various of
Garafano's subsidiary statements were contradicted by the
director of his city department but the director had no
direct knowledge of whether Garafano had received bribes. On
October 4, 1993, the jury in the second trial found Garafano
guilty. The verdict was a general verdict on the single
count charged and provided no indication of which episodes
the jury found to have occurred.
On December 14, 1993, the trial judge held a sentencing
hearing. At the hearing defense counsel took the position
that only the first payment of $8,000 in March 1989 had been
adequately supported by evidence and that Tocco's testimony
as to further payments was not credible. It was apparently
the defense position that after the first incident Tocco
himself had been stealing from the firm and claiming falsely
that the payments had been made to Garafano. This contention
was pertinent to sentencing in several respects.
The presentence report had proposed that Garafano be
sentenced under the November 1993 version of the Sentencing
Guidelines which was in effect at the time of sentencing.
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The report recommended that the court fix the base offense
level at 10, as provided by U.S.S.G. 2C1.1(a), and that it
add two levels as a specific offense adjustment because the
offense involved more than one bribe or extortion. Id.
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2C1.1(b)(1). In addition, the report recommended a further
six-level adjustment based on the amount of the payment
received by Garafano; the guidelines provide a table fixing
such an adjustment at six levels where the amount is greater
than $70,000. Id. 2C1.1(b)(2)(A), 2F1.1(b)(1)(G). A
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payment of $8,000 would have added only two levels. Id.
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Prior to November 1989, the guidelines did not included
the two-point adjustment for multiple bribes. Garafano's
counsel objected that without the additional payments
allegedly made through Tocco, the extortionate conduct would
have ceased prior to the effectiveness of that guideline
amendment. Counsel argued that if the conduct did cease
before the amendment, then ex post facto concerns required
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that the two points not be included. Our decisions confirm
that where a guideline amendment increases the sentence after
the offense, the guidelines in effect at the time of the
offense should be used. See e.g., United States v.
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Rodriguez, 26 F.3d 4, 7-8 (1st Cir. 1994).
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More important, if Tocco's testimony were disregarded,
then the total amount gained by the extortionate conduct
would be only $8,000. This would eliminate not only the two-
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point adjustment for multiple bribes (since there would be no
second bribe proved) but also the proposed six-point
adjustment based on "the loss or gain table". Of course,
Forte's testimony alone, not challenged at the sentencing
hearing, established that Garafano had solicited a bribe in
the amount of $8,000, whether or not Tocco delivered the
money; but a single $8,000 bribe would have reduced the
guideline range.
At the sentencing hearing defense counsel asked the
court to find that the 1989 version of the guidelines
applied, asserting that the jury may have based its verdict
only on the first $8,000 bribe, which counsel described as
"the only corroborated event" that the government had proved
to the jury. The court replied, "how can you ask me to
dissect what a jury has done?" Counsel responded that "[t]he
guidelines allow you exactly that power . . . ." Pressed as
to why the court should disbelieve Tocco, defense counsel
offered an example of an asserted contradiction between the
testimony of Tocco and other government witnesses.
The prosecutor replied that Tocco's testimony had been
corroborated, and then added: "I don't think the Court has
the discretion to piecemeal the jury's verdict in this case."
The court replied: "I quite agree with you," adding (to
defense counsel) that "the reasons [the prosecutor] stated
are ample in and of themselves." The court went on to say
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that it agreed that "the facts of the case reflect" that the
offense occurred between April 1989 and December 1990 and
showed the receipt of between 12 and 20 payments.
Accordingly the court rejected the ex post facto claim.
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Defense counsel then went on to argue at even greater
length that Tocco should not be believed. This time the
argument was to support counsel's claim that, in applying the
loss or gain table, the court should treat as proved only the
first $8,000. The court listened courteously to the argument
and then rejected it, saying that "there was substantial
evidence . . . [that] could convince a jury beyond a
reasonable doubt." Defense counsel then said that the jury
could have convicted solely on the basis of the $8,000 bribe.
The court replied: "I'm not going to dissect this jury's
verdict."
After other largely unrelated discussion, the court
heard final statements from defense counsel and Garafano. It
then summed up:
We have a base offense level of 10 in this case,
and since there was more than one bribe, two points
have to be added. And since the amount involved
approximately $100,000.00, that's an additional six
points, which gives a total adjusted level of 18.
He has a criminal history category of one, which
means the sentencing range is from 27 to 33 months.
Concluding that Garafano had been motivated by "sheer greed
and nothing else," the court imposed a sentence of 31 months
imprisonment and a $6,000 fine, together with an order
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requiring Garafano to make restitution of $100,000 to the
city. This appeal followed.
The only issue on appeal is the defense claim that the
district court erred because it allegedly refused to make an
independent assessment of the Tocco testimony and make its
own finding as to whether bribes of approximately $100,000
had been paid during a period extending to December 1990.
The government agrees that an independent determination was
required but says that the district court made such an
assessment. We agree with the government that the district
court probably did make an independent assessment but to
remove the shadow of uncertainty, we have decided to remand.
The uncertainty is apparent from our recitation of the
facts. Normally the trial court makes its own assessment of
the facts that pertain to sentencing, drawing on trial
evidence, the presentence report, any evidence offered at the
hearing, and other appropriate sources. See United States v.
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Tavano, 12 F.3d 301, 306-07 (1st Cir. 1993). Indeed, we have
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held that a judge may attribute conduct to a defendant for
"relevant conduct" purposes even where a jury has declined to
convict on counts pertaining to such conduct. United States
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v. Carrozza, 4 F.3d 70, 80 (1st Cir. 1993), cert. denied, 114
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S.Ct. 1644 (1994); United States v. Mocciola, 891 F.2d 13,
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16-17 (1st Cir. 1989).
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Whether the trial court could ever be bound at
sentencing by the jury's determination against a defendant
(e.g., through collateral estoppel) is an interesting issue
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but is irrelevant here: the government agrees that the jury
could in theory have convicted solely on the evidence
pertaining to the first $8,000 bribe solicitation; and since
the jury delivered a general verdict there is no way to tell
what it actually found as to the number of bribes. In sum,
even if a jury verdict against the defendant on a fact issue
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could ever constrain the sentencing judge, but cf. Tavano, 12
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F.3d at 305, 307, this jury verdict could not resolve the
amount and timing issues faced at sentencing.
We have read the sentencing transcript in full and are
inclined to think that the trial judge, an experienced and
respected jurist, fully understood that he could and should
decide himself when the offense ended and how much was paid.
Further, his statement quoted above ("the facts of the case
reflect . . .") is reasonably clear evidence that he did
resolve those issues against Garafano and was not relying
upon the jury verdict or any misinterpretation of it. Nor
does Garafano argue on appeal that the evidence at trial was
insufficient to support findings at sentencing that the
bribes continued to December 1990 and equaled about $100,000.
If this were all, we would affirm without a moment's
hesitation. But we agree with Garafano that the record is at
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least blurred by the agreement of the trial judge and the
prosecutor that the jury verdict could not be dissected.
Quite likely both meant only that peering into the verdict
was infeasible and served no purpose; but abstractly the
prosecutor's words could be taken as an argument that the
jury had resolved the issue of timing and amount against
Garafano and that this decision was binding.
The prosecutor's statement--"I don't think the Court has
the discretion to piecemeal the jury's verdict in this case"-
- happens to sound like a refutation of defense counsel's
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earlier argument to the court that "[y]ou [the court] have
the ability, the discretion in sentencing" to determine the
amount and timing of the loss. As government counsel
properly says on appeal, the prosecutor's statement was an
"unfortunate" choice of words. The district judge then
followed the prosecutor's statement by saying, "I quite agree
with you" and telling defense counsel that the prosecutor's
reasons were "ample" basis for rejecting the defense
position.
In saying that these colloquies leave a measure of
uncertainty, we do not intend the slightest criticism of
either the court or counsel. Court colloquies are not
scripted events like television commercials or public
speeches. Lawyers are usually trying to advance and explain
conflicting positions, and the judge is seeking to resolve on
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the spot often arcane issues and tangled factual disputes.
In this case, it is quite likely that there was no
misunderstanding whatever.
Still, the difference between a total offense level of
18, with a range of 27 to 33 months, and a total level of 12,
with a range of 10 to 16 months, is substantial; and the
latter's maximum 16 months is just about half of the sentence
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actually imposed. It takes very little effort to resolve the
uncertainty. Defense counsel suggested at oral argument a
remand for an entirely new sentencing hearing; the government
said that if any remedy were needed, this court could retain
jurisdiction and simply ask the district court to clarify the
record. We have in mind a third course.
We propose to vacate the existing sentence and remand
the matter to the district court for resentencing. The
district court has already given Garafano a chance to argue
his evidentiary position in full and no request was made by
defense counsel to offer new evidence; if the district court
did (at the earlier hearing)--or did not then but now does--
find (independently of the jury verdict) that bribes
continued until December 1990 and were around $100,000, the
court is free to say so summarily and to reimpose the same
sentence. No additional proceedings, or further explanation
or findings, are required. See United States v. Savoie, 985
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F.2d 612, 620-21 (1st Cir. 1993).
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Conversely, the district court is free to order any
further proceedings it deems appropriate before imposing
sentence. It may do so if there was an actual
misunderstanding at the original sentencing as to the
district court's authority, or merely because the court
thinks that this would be useful to it. But if the court
does change the factual premise on which it sentences
Garafano--and thereby alters the guideline range available--
we think that it would be within the spirit of the rules to
provide counsel and the defendant an opportunity to allocute
again.
The sentence, but not the conviction, is vacated and the
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case remanded for resentencing in accordance with this
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opinion.
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